Alberto Gonzales is leaving the Justice Department with a lot of sensitive business pending. One open case of exceptional importance concerns the leak of highly classified information about the National Security Agency’s terrorist-surveillance program. Details of the program were published in the New York Times in a series of articles beginning on December 16, 2005, and supplemented in State of War, a book by Times reporter James Risen, which came out the following month.
A grand jury has been investigating the leak since January 2006. Earlier this month, a former Justice Department lawyer by the name of Thomas M. Tamm had his home searched and his computers, including two of his children’s laptops, seized, along with his personal papers, in a raid by the FBI. Newsweek’s Michael Isikoff reported that the raid was connected to a criminal probe into the NSA wiretapping leak.
Gonzales’s own participation in this case is of a piece with his overall performance: fecklessness combined with an inability to articulate a clear position. The fact is that the NSA leak in the Times occurred in the middle of a war. It concerned not secrets from the past, as in the 1971 Pentagon Papers case (also involving a leak to the Times), but an ongoing operational-intelligence program designed to prevent a second September 11. On its face, as I argued in COMMENTARY, the Times had violated Section 798 of Title 18, which makes it a crime to disclose classified information pertaining to communications intelligence.